Campbell J.:
Seeley brought ejectment against the plaintiffs in error, claiming under an Auditor’s deed of State tax lands puiv [340]*340.porting to .have been bid off to the State for the taxes of 185'/', 1858, and 1880, reciting- these facts, and the further fact, that for the former year it had been hold more than five years.
The defendants below objected to the admissibility of this deed: First, Because no proof had been offered of any sale to the State. Second, Because the taxes for those years in Detroit were not authorized by any existing law, and if any were levied they were void. And, ■third, That the recitals were not competent evidence, and there was no evidence of title in plaintiff below.
If there was no law in existence whereby the taxes for State and County purposes, for those years, could be assessed in Detroit, where the land in question lies, then we are bound to know, judicially, that no authority existed to make such a deed. The question is one of ■much importance, and, inasmuch as the case will be decided on other grounds, we prefer not to consider this ■subject until it comes before us with more light upon the actual state of affairs.
Assuming, however, that those sales may have been authorized by law, we think the deed would in such case be prima facie evidence that the taxes were regular, and that the land was bid off to. the State for the years mentioned. These lands wore purchased directly from the Auditor General at his office. By section 130 of the tax law, as amended, (L. 1858, p. 191,) it is declared that the provisions applicable to deeds executed by the Auditor General on the surrender of certificates of sale of State tax lands, issued by County Treasurers, shall apply to deeds for such lands purchased at his office. By Section 124, (L. 1858, p. 190) such deeds were made prima facie evidence of the legality of the proceedings, to the date of the deed, and conclusive evidence after being recorded two years. We held, in Quinlon v. Rogers, 12 Mich. R., 168, that this latter clause was unconstitutional,. [341]*341as depriving a party * of his rights without a legal hearing. But the former clause being' merely, a rule of evidence, and not preventing the owner in a' legal controversy from setting up the facts which might destroy the tax deed, is not open to the same objection. The effect of this statute .is not to make the deed evidence of extrinsic facts, should those facts become material; but to make it prima facie, evidence that the lands were taxable and regularly assessed, and bid off under such laws as were in force; and the interest or title intended to be conveyed must appear. We think this entirely competent and that this is what was designed by Section 180, in reference to State tax lands sold by the Auditor General himself Assuming,, therefore, for the present, that .the statutes provided for assessments and taxation in Detroit, the deed was not on any other account inadmissible, and would have been prima facie evidence of regularity.
The deed from Collins Bradley, the Auditor’s grantee, to Seeley, was objected to on the ground that the Audit- or’s deed had made no foundation of title. It is therefore unnecessary to remark further upon it.
In order to prove the deeds of the several State sales a book was introduced, kept by the County Treasurer of Wayne County, containing statements of the various tax sales, and the names of purchasers, and other items con-, nected therewith. It is claimed that this book was improperly admitted. Before such a book is received, it must appear to have been kept in the office' as one of the regular office books for making such entries. But the fact that ’ no statute distinctly requires such a book to be kept does not exclude it. The duties of the County Treasurer could not be adequately performed without his keeping a permanent record of these transactions, and such record, therefore, if kept, must be considered as an official book, and must be receivable in evidence on that basis. From the form of the objection [342]*342wo do not perceive that any question arose upon the genuineness of the record as belonging to the proper ■custody, or upon the fact of its being- kept as an office book, and we perceive therefore no reason why it should have been excluded.
The defendants below offered to show that the taxes for which the lands were sold were illegal for non-compliance with the statutes. The 'Court refused to permit this, on the ground that by Section 135 of the tax law, (L. 1858 p. 192.) the title to land bid off by the State is made absolute and indefeasible after five years, and no adverse title can be allowed to be set up against it, either by a plaintiff or by a defendant. Such is plainly the.provision of the statute, and the only question, therefore, is, whether such a law can be maintained.
This point is substantially like that which arose in Quinlon v. Rogers. In that case a statute cutting off all adverse rights two years after a deed had been recorded, was held invalid, on the ground that it was depriving a party of his rights without due process of law. The Legislature had indeed undertaken to provide a sort of remedy, which was not perhaps, in its terms, strictly applicable to such titles as that involved in that case, but which was the only one devised at all. In Waldby v. Callendar, 8 Mich. R., 430, this remedy was declared nugatory. Whether, if lawful, it would have been valid to cut off rights in possession, it was not necessary to decide. The law as it stood took away titles, without allowing parties holding the actual dominion under them any opportunity to defend their rights. There is no principle on which such legislation can be maintained. The only manner in which a party holding a lawful and vested right in property can be prevented from asserting it against one which was not lawful in its inception, is by the operation of limitation laws. These laws do not purport to take away existing rights, although their operation [343]*343may often liave substantially that result. But they are designed to compel parties whose rights are unjustly withheld from them to vindicate their claims within some reasonable time. If a person who has been ousted of his possession or dominion desires to regain it, he knows that he must resort to those means which are furnished by the law, either by the peaceable act of a party himself, or by legal prosecution. A limitation law simply requires him to proceed and enforce those rights within some reasonable time, on pain of being deemed to have abandoned them. Such laAvs can only operate on those who are not already in the enjoyment and dominion of then-rights. A person who has a lawful right, and is actually or constructively in possession, can never be required to, take active steps against opposing claims. The law does not compel any man who is unassailed to pay any attention to unlawful pretences which are not asserted by possession or suit. When such a title is set up, he has a right to defend himself, by jury, if the claim is one of common law .cognizance, or otherwise, if of a different nature. But to hold that, under any circumstances, a man can be deprived of a legal title without a hearing, is impossible, without destroying the entire foundations of constitutional protection to property. No one can be cut off by .limitation until he has failed to prosecute the remedy limited; and no one can be compelled to prosecute, when he is already in possession of all that- he demands.
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Campbell J.:
Seeley brought ejectment against the plaintiffs in error, claiming under an Auditor’s deed of State tax lands puiv [340]*340.porting to .have been bid off to the State for the taxes of 185'/', 1858, and 1880, reciting- these facts, and the further fact, that for the former year it had been hold more than five years.
The defendants below objected to the admissibility of this deed: First, Because no proof had been offered of any sale to the State. Second, Because the taxes for those years in Detroit were not authorized by any existing law, and if any were levied they were void. And, ■third, That the recitals were not competent evidence, and there was no evidence of title in plaintiff below.
If there was no law in existence whereby the taxes for State and County purposes, for those years, could be assessed in Detroit, where the land in question lies, then we are bound to know, judicially, that no authority existed to make such a deed. The question is one of ■much importance, and, inasmuch as the case will be decided on other grounds, we prefer not to consider this ■subject until it comes before us with more light upon the actual state of affairs.
Assuming, however, that those sales may have been authorized by law, we think the deed would in such case be prima facie evidence that the taxes were regular, and that the land was bid off to. the State for the years mentioned. These lands wore purchased directly from the Auditor General at his office. By section 130 of the tax law, as amended, (L. 1858, p. 191,) it is declared that the provisions applicable to deeds executed by the Auditor General on the surrender of certificates of sale of State tax lands, issued by County Treasurers, shall apply to deeds for such lands purchased at his office. By Section 124, (L. 1858, p. 190) such deeds were made prima facie evidence of the legality of the proceedings, to the date of the deed, and conclusive evidence after being recorded two years. We held, in Quinlon v. Rogers, 12 Mich. R., 168, that this latter clause was unconstitutional,. [341]*341as depriving a party * of his rights without a legal hearing. But the former clause being' merely, a rule of evidence, and not preventing the owner in a' legal controversy from setting up the facts which might destroy the tax deed, is not open to the same objection. The effect of this statute .is not to make the deed evidence of extrinsic facts, should those facts become material; but to make it prima facie, evidence that the lands were taxable and regularly assessed, and bid off under such laws as were in force; and the interest or title intended to be conveyed must appear. We think this entirely competent and that this is what was designed by Section 180, in reference to State tax lands sold by the Auditor General himself Assuming,, therefore, for the present, that .the statutes provided for assessments and taxation in Detroit, the deed was not on any other account inadmissible, and would have been prima facie evidence of regularity.
The deed from Collins Bradley, the Auditor’s grantee, to Seeley, was objected to on the ground that the Audit- or’s deed had made no foundation of title. It is therefore unnecessary to remark further upon it.
In order to prove the deeds of the several State sales a book was introduced, kept by the County Treasurer of Wayne County, containing statements of the various tax sales, and the names of purchasers, and other items con-, nected therewith. It is claimed that this book was improperly admitted. Before such a book is received, it must appear to have been kept in the office' as one of the regular office books for making such entries. But the fact that ’ no statute distinctly requires such a book to be kept does not exclude it. The duties of the County Treasurer could not be adequately performed without his keeping a permanent record of these transactions, and such record, therefore, if kept, must be considered as an official book, and must be receivable in evidence on that basis. From the form of the objection [342]*342wo do not perceive that any question arose upon the genuineness of the record as belonging to the proper ■custody, or upon the fact of its being- kept as an office book, and we perceive therefore no reason why it should have been excluded.
The defendants below offered to show that the taxes for which the lands were sold were illegal for non-compliance with the statutes. The 'Court refused to permit this, on the ground that by Section 135 of the tax law, (L. 1858 p. 192.) the title to land bid off by the State is made absolute and indefeasible after five years, and no adverse title can be allowed to be set up against it, either by a plaintiff or by a defendant. Such is plainly the.provision of the statute, and the only question, therefore, is, whether such a law can be maintained.
This point is substantially like that which arose in Quinlon v. Rogers. In that case a statute cutting off all adverse rights two years after a deed had been recorded, was held invalid, on the ground that it was depriving a party of his rights without due process of law. The Legislature had indeed undertaken to provide a sort of remedy, which was not perhaps, in its terms, strictly applicable to such titles as that involved in that case, but which was the only one devised at all. In Waldby v. Callendar, 8 Mich. R., 430, this remedy was declared nugatory. Whether, if lawful, it would have been valid to cut off rights in possession, it was not necessary to decide. The law as it stood took away titles, without allowing parties holding the actual dominion under them any opportunity to defend their rights. There is no principle on which such legislation can be maintained. The only manner in which a party holding a lawful and vested right in property can be prevented from asserting it against one which was not lawful in its inception, is by the operation of limitation laws. These laws do not purport to take away existing rights, although their operation [343]*343may often liave substantially that result. But they are designed to compel parties whose rights are unjustly withheld from them to vindicate their claims within some reasonable time. If a person who has been ousted of his possession or dominion desires to regain it, he knows that he must resort to those means which are furnished by the law, either by the peaceable act of a party himself, or by legal prosecution. A limitation law simply requires him to proceed and enforce those rights within some reasonable time, on pain of being deemed to have abandoned them. Such laAvs can only operate on those who are not already in the enjoyment and dominion of then-rights. A person who has a lawful right, and is actually or constructively in possession, can never be required to, take active steps against opposing claims. The law does not compel any man who is unassailed to pay any attention to unlawful pretences which are not asserted by possession or suit. When such a title is set up, he has a right to defend himself, by jury, if the claim is one of common law .cognizance, or otherwise, if of a different nature. But to hold that, under any circumstances, a man can be deprived of a legal title without a hearing, is impossible, without destroying the entire foundations of constitutional protection to property. No one can be cut off by .limitation until he has failed to prosecute the remedy limited; and no one can be compelled to prosecute, when he is already in possession of all that- he demands.
This statute does not purport to be a limitation law. It is designed by its express terms to deprive persons of their titles whether in possession or not, by mere lapse of time. If the proceedings to sell for taxes were illegal, no lapse of time can change their character, and they can never therefore become legal. If the tax purchaser obtains possession, and holds it until protected by a limitation law, 'he then becomes safe, not because his tax title is [344]*344any more regular, but because the holder of the better title has become incapable of asserting it. As an illegal tax title is a nullity, it cannot of itself divest or affect the true title in any way, and the true owner cannot be lawfully compelled to incur expense or take active measures to get rid of it, unless lie sees fit. But if he becomes-ousted, whether by a pretended tax title holder • or by any adverse claimant, he can only secure the enjoyment of his rights by active measures, and the party in possession may then rely on such possession until it is lawfully assailed, by suit, or otherwise, within the period of limitation. In the present case, the party asserting a legal claim, against one which he claims to have been illegal, is in possession as a defendant. The other claimant is the actor, and insists that, whether his tax title was legal or worthless originally, it lias become good, although the defendant has not been -previously ousted and guilty of delay in enforcing this title. If this tax .title can be thus made indefeasible against a title in possession, by mere lapse of time, it might as well have been declared ■ so originally. It would in either case bo nothing more nor less than depriving one of his property without any legal process, and is simply confiscation by ministerial and not judicial action.
It is insisted, however, that by section 133, the Auditor General may be made a defendant in an . action of ejectment, and that a remedy is thus provided which a party aggrieved should resort to. This statute, however, does not introduce the absurdity of requiring a party who has not been dispossessed to commence an action. It simply provides who ihay be sued as representing the State, when an action has been commenced, rendering it “necessary” to reach the State title. It does not profess, nor does it operate, to introduce any new features into the action of ejectment, or to change its essential features as an action to obtain the possession and enjoyment of land under adverse dominion.
[345]*345Tbe defendants below should have been permitted to attack the legality of the tax titles. We consider section. 135 as invalid, so far as it divests titles.
It is also alleged, as error, that Ebenezer II. Rogers was not allowed to be asked whether he was not the real purchaser of tbe tax title, and whether the deeds tp Bradley and Seeley were not made for his use. The acknowledgment of the deed to Seeley was taken by Rogers; and there was no proof of the deed except by means of the certificate of acknowledgment; and it is claimed that a person cannot be an acknowledging officer on his own behalf.
We should have no hesitation in holding that a person could not take the acknowledgment of a deed made to himself. Such a point is too plain for doubt. But under our statutes ’ such a deed as is here set out, creates no resulting trust in favor of Rogers, even if he furnished the consideration; (2 C. L., §2637); nor could such a trust be raised by parole. But if, at the time the deed was made, any valid agreement in writing existed, that the title so conveyed should be held for the benefit of Rogers, then such an acknowledgment would be a fraud, and the deed could not be pawed by it unless in favor of persons not cognizant of the facts. As the offer was to prove an interest, it must be assumed to have been a valid one. The testimony was admissible also upon another ground. By showing that there was no consideration for the deed to Seeley, it would open the question of value under the stamp act, and enable the sufficiency of the stamp to be investigated on that basis: as, where there is no actual consideration, the stamp must be regulated by the value of the interest sold. We give no opinion as to where the burden of proof lies after such a showing.
For these several reasons we think the judgment should [346]*346be reversed with costs, and tbe cause should be remanded for . a new trial.
Cooley and Chbistiancy JJ. concurred.